Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Shelter Mutual Insurance Co.

United States District Court, M.D. Louisiana

July 13, 2017

BRADLEY W. SMITH
v.
SHELTER MUTUAL INSURANCE CO.

          ORDER

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE

         Before the Court is Plaintiff's Reurged Motion to Compel Discovery and Sanctions (R. Doc. 54) filed on June 1, 2017. The Motion is opposed. (R. Doc. 58). Plaintiff has filed a Reply. (R. Doc. 61).

         I. Factual and Procedural History

         This is an insurance action arising out of an automobile-pedestrian accident on August 13, 2001 involving Bradley W. Smith (“Smith” or “Plaintiff”) and Paul Babin (“Babin”). After the accident, Smith filed a state court lawsuit against Babin and his insurance company, Shelter Mutual Insurance Company (“Shelter” or “Defendant”). After conducting a bifurcated trial, the trial judge dismissed with prejudice Babin's cross-claims against Shelter for alleged bad faith in refusing to provide Babin with a legal defense, misrepresenting the coverage under the Shelter policy, and failure to indemnify Babin. Thereafter, Babin sought review of the trial court's finding that Shelter did not have a duty to defend Babin. The Louisiana First Circuit Court of Appeal affirmed. Babin also sought review of the trial court's dismissal of his claims of misrepresentation and for failure to indemnify. The Louisiana First Circuit held the issue was not properly before the court on appeal because Shelter had admitted coverage and paid its policy limits after the jury trial portion of the bifurcated trial.

         On June 3, 2015, Smith filed the instant lawsuit, under an assignment of rights from Babin, seeking to collect from Shelter the excess amount of the state trial court judgment beyond the policy liability amount of $10, 000 per person, and for bad faith damages pursuant to La. R.S. 22:1892 and La. R.S. 22:1973. (R. Doc. 1).

         On June 24, 2016, Smith served his First Set of Interrogatories and requests for Production of Documents and Things on Shelter. (R. Doc. 54-3).

         On July 1, 2016, Shelter filed a Motion for Summary Judgment, arguing that Smith's claims were barred by res judicata. (R. Doc. 20).

         On August 19, 2016, the district judge granted in part and denied in part Shelter's Motion for Summary Judgment. (R. Doc. 27). In short, the district judge held that Smith's claims for bad faith damages were barred by res judicata, but allowed Smith to proceed on his excess judgment liability claims. Both parties appealed this ruling to the Fifth Circuit Court of Appeals. (R. Doc. 36; R. Doc. 39).

         On August 25, 2016, Shelter filed a second Motion for Summary Judgment, arguing that Smith's excess judgment liability claims should also be dismissed. (R. Doc. 28). That same day, Shelter provided its responses to Smith's outstanding discovery requests. (R. Doc. 54-5).

         On September 14, 2016, Smith opposed Shelter's Motion for Summary Judgment on the issue of excess judgment liability (R. Doc. 32) and also sought an order requiring discovery pursuant to Rule 56(d) of the Federal Rules of Civil Procedure (R. Doc. 33). The district judge granted the request for Rule 56(d) discovery, and dismissed Shelter's Motion for Summary Judgment on the issue of excess judgment liability (R. Doc. 32) without prejudice to refiling following the conclusion of discovery. (R. Doc. 37).

         On September 21, 2016, defense counsel sent a letter to Plaintiff's counsel stating that they were requesting additional materials from their client and would provide the responses as soon as received, hopefully by September 30, 2016. (R. Doc. 42-6).

         On October 7, 2016, Shelter filed his initial Motion to Compel Discovery and Sanctions. (R. Doc. 42). The undersigned denied that motion without prejudice to refile within 30 days after the issuance of a ruling by the Fifth Circuit on the pending appeals. (R. Doc. 49).

         On May 2, 2017, the Fifth Circuit dismissed the parties' appeal for lack of jurisdiction. (R. Doc. 52). That same day, Shelter moved for partial reconsideration of the August 19, 2016 Ruling to the extent it did not dismiss Smith's claims for excess judgment liability. (R. Doc. 50).

         On May 5, 2017, the parties held a conference regarding Smith's discovery requests and Defendant's responses. (R. Doc. 54-1 at 2).

         On May 18, 2017, Shelter provided its “Updated Responses” to Smith's Interrogatories and Requests for Production. (R. Doc. 54-8).

         On June 1, 2017, Smith filed the instant Reurged Motion to Compel Discovery and Sanctions. (R. Doc. 54). Smith seeks an order compelling supplemental responses to Interrogatory Nos. 1, 2, 3, 5, 7, 8, 11, 12, 13, and Request for Production Nos. 1, 5, 6, 7, 8, 9 and 10. (R. Doc. 54-2 at 4-12).

         On June 8, 2017, the district judge denied Defendant's Motion for Partial Reconsideration of his August 19, 2016 Ruling. (R. Doc. 55). In so doing, the district judge upheld his dismissal of “Plaintiff's bad faith claims of failing to provide a legal defense to Paul Babin (failure to defend), misrepresenting coverage under the Shelter policy, and for failure to indemnify Babin arising under La. R.S. 22:1892 and La. R.S. 22:1973” on the basis of res judicata, and clarified that Smith's “only remaining claim is one for excess judgment liability under La. R.S. 22:1973.” (R. Doc. 55 at 5).

         On June 29, 2017, the undersigned held a conference with the parties and set new deadlines in this action, including a new trial date. (R. Doc. 62).

         II. Arguments of the Parties

         In support of his motion, Smith argues that despite Shelter's objections, Interrogatory Nos. 1, 2, 3, 5, 7, 8, 11, 12, 13, and Request for Production Nos. 1, 5, 6, 7, 8, 9 and 10 seek relevant information within the scope of discovery in light of the remaining excess liability claim. (R. Doc. 54-2 at 4-12). Smith further argues that because Shelter has not provided a privilege log pursuant to Rule 26(b)(5)(A) of the Federal Rules of Civil Procedure, it has waived any objections to the discovery requests on the basis of attorney-client privilege and/or work product immunity. (R. Doc. 54-2 at 13-14). Smith further argues that Shelter's “refusal to participate in good faith” and its “evasive answers and inapplicable objections” to the foregoing discovery requests constitutes sanctionable conduct pursuant to Rule 37, meriting a finding that Shelter has waived attorney-client privilege and/or work product immunity where asserted, or, alternatively, an award of costs and attorney's fees. (R. Doc. 54-2 at 20). Finally, Smith asserts that Shelter has waived any objections not raised in its original responses in light of the requirements of Rule 26(g). (R. Doc. 54-2 at 20).

         In opposition, Shelter asserts that it has properly asserted the attorney-client privilege and/or work product immunity where asserted, and that its “general objections” to the discovery requests on those bases constitutes a “privilege log” as required by Rule 26(b)(5)(A). (R. Doc. 58 at 1-5). Shelter further argues that discovery regarding the dismissed bad faith claims is irrelevant and that certain responses to the discovery requests are sufficient. (R. Doc. 58 at 6-7). Finally, Shelter argues that sanctions are not merited given the importance of attorney-client privilege and work product immunity, and the procedural history of this action. (R. Doc. 58 at 8-9).

         In reply, Smith raises additional arguments regarding the insufficiency of Shelter's objections based on attorney-client privilege and work product immunity, including the sufficiency of its “privilege log.” (R. Doc. 61).

         III. Law and Analysis

         A. Legal Standards

         “Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed.R.Civ.P. 26(b)(1). The court must limit the frequency or extent of discovery if it determines that: “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C).

         “When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed--and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed.R.Civ.P. 26(b)(5)(A).

         “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1). Rule 26(c)'s “good cause” requirement indicates that the party seeking a protective order has the burden “to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.” In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)).

         Rules 33 and 34 provide a party with 30 days after service of the discovery to respond or object. See Fed. R. Civ. P. 33(b)(2) and 34(b)(2)(A). If a party fails to respond fully to discovery requests made pursuant as to Rules 33 and 34 in the time allowed by the Federal Rules of Civil Procedure, the party seeking discovery may move to compel disclosure and for appropriate sanctions under Rule 37. An “evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer or respond.” Fed.R.Civ.P. 37(a)(4).

         B. Analysis

         1. Attorney-Client Privilege and/or Work Product Immunity

         Shelter raised the objection of attorney-client privilege to Interrogatory Nos. 7, 8, 11, 13, and Request for Production Nos. 1, 3, 5, 8. Shelter also raised the objection of work product immunity to Interrogatory No. 13.

         In addition to the requirements set forth in Rule 26(b)(5)(A) and mentioned above, this Court's Local Rule 26(c) provides the following: “A party withholding information claimed privileged or otherwise protected must submit a privilege log that contains at least the following information: name of the document, electronically stored information, or tangible things; description of the document, electronically stored information, or tangible thing, which description must include each requisite element of the privilege or protection asserted; date; author(s); recipient(s); and nature of the privilege.” LR 26(c); see also Cashman Equip. Corp. v. Rozel Operating Co., No. 08-363, 2009 WL 2487984, at *2 (M.D. La. Aug. 11, 2009) (“[A] privilege log . . . should not only identify the date, the author, and all recipients of each document listed therein, but should also describe the document's subject matter, the purpose for its production, and a specific explanation of why the document is privileged or immune from discovery.”) (quoting Peacock v. Merrill, No. 08-01, 2008 WL 687195, at *3 (M.D. La. Mar. 10, 2008)).

         Shelter's objections to Smith's discovery requests on the basis of attorney-client privilege and work product immunity are insufficient. Shelter has not described the withheld information in a manner consistent with Rule 26(b)(5)(A) and Local Rule 26(c).[1] Accordingly, the Court will determine whether Shelter has waived the attorney-client privilege and/or work product immunity where asserted in light of its failure to comply with Rule 26(b)(5)(A) and Local Rule 26(c).

         It is within the Court's discretion to find a waiver of an asserted privilege for failing to timely produce a privilege log. Janko v. Fresh Mkt., Inc., No. 13-648, 2015 WL 4656694, at *3 (M.D. La. Aug. 5, 2015) (citing Blackard v. Hercules, Inc., No. 12-175, 2014 WL 2515197, at *4 (S.D.Miss. June 4, 2014)). Failure to produce a privilege log pursuant to Rule 26 “is, on its own, sufficient to warrant a finding that any privilege, even if it had been established . . ., has been waived.” Janko, 2015 WL 4656694, at *3 (citing Agee v. Wayne Farms, L.L.C., No. 06-268, 2007 WL 2903208, at *3 (S.D.Miss. Oct. 1, 2007); see also Onebeacon Ins. Co. v. Forman Int'l Ltd., No. 04-2271, 2006 WL 3771010, at *7 (S.D.N.Y. Dec. 15, 2006) (“The unjustified failure to list privileged documents on the required log of withheld documents in a timely and proper manner operates as a waiver of any applicable privilege.”).

         Considering the arguments of the parties, the importance of the attorney-client privilege and work product immunity, and the record as a whole, the Court concludes that Shelter has not waived the attorney-client privilege and work product immunity. Foremost, for each of the written discovery requests to which Shelter raised an objection based on attorney-client privilege or work product immunity, it also raised an objection as to relevance. Considering the procedural history of this action, the Court will not penalize Shelter for not fully explaining the basis of its privilege objections (through a privilege log or otherwise) until the Court issued a finding that the information sought is relevant.

         Furthermore, Smith has not indicated that the parties held a Rule 37 conference that specifically discussed Shelter's lack of compliance with Rule 26(b)(5)(A) and Local Rule 26(c). (See R. Doc. 54-1). Under these circumstances, the Court concludes that Shelter should be provided an opportunity to correct its deficiencies with regard to Rule 26(b)(5)(A) and Local Rule 26(c) rather than find a blanket waiver of privilege. See U.S. Sec. & Exch. Comm'n v. Commonwealth Advisors, Inc., No. 12-700, 2015 WL 10990241, at *2 (M.D. La. Dec. 16, 2015) (noting that district judge found “across-the-board waiver” of the attorney-client privilege by the magistrate judge without providing the defendants “an opportunity to correct the deficiencies” to be “unduly harsh”); see also Cashman Equip. Corp., 2009 WL 2487984, at *2 n.4 (“Waiver of privilege objections is not required as a result of the production of a deficient privilege log.”) (citing cases).

         Accordingly, the Court will require Shelter to produce explanations of its assertions of attorney-client privilege and work product immunity in accordance with Rule 26(b)(5)(A) and Local Rule 26(c) on or before July 24, 2017. Shelter shall produce a privilege log and shall identify documents required to be produced consistent with this Order, but withheld pursuant to the attorney-client privilege and/or the work product doctrine. If Shelter fails to identify on its privilege log documents and/or communications otherwise found to be within the scope of discovery as detailed in this Order, it will be subject to sanctions, including, but not limited to, a finding that it has waived the attorney-client privilege and/or work product doctrine with regard to the documents and/or communications not identified on the privilege log.

         2. Shelter's “Full Faith and Credit” Objection

         Shelter raised the following objection to Interrogatory Nos. 3, 5, 7, 8, 11, 12, 13, and Request for Production Nos. 1, 5, 6, 7, 8, 9, 10:

Objection. The requested information will is (sic) not relevant to the case at hand and is not important to the discovery in resolving the issues pursuant to Federal Rule of Civil Procedure 26(b)(1). The federal courts are bound to give to the judgments of the state courts the same faith and credit that the courts of one State are bound to give to the judgments of the courts of her sister States. Kremer v. Chem. Const. Corp., 456 U.S. 461, 481, 102 S.Ct. 1883, 1898, 72 L.Ed.2d 262 (1982). There has been a state court judicial determination that Shelter “was not arbitrary, capricious, or in any way in bad faith making its decision that it did not have coverage, nor did it have a duty to defend.” Any investigation into the requested material is implicitly and impermissibly seeking ruling in the federal court otherwise, which is impermissible under Full Faith and Credit. 28 U.S.C.A. § 1738.

         It appears that the foregoing “full faith and credit” objection is premised on the argument that the dismissal of Smith's bad faith claims on the basis of res judicata ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.